Episode Summary
Executive Summary: Kara Swisher interviews historian Jill Lepore about her new book on the U.S. Constitution, focusing on Article V, the amendment process, and why constitutional change has become nearly impossible. They connect that rigidity to slavery-era compromises, the rise of originalism, Supreme Court power, Trump’s attacks on constitutional norms, and whether AI and political polarization could force a new constitutional era.
Main Topics: Article V and the amendment process (Priority: 5/5): Lepore argues that amendment is central to American constitutionalism, but the supermajority rules in Article V made change difficult from the start and nearly impossible in the modern era. Historical compromises over slavery and small states (Priority: 5/5): The Constitution’s amendment rules and structural features reflect compromises to protect slavery and preserve small-state power, including the delayed end of the slave trade and equal Senate suffrage. Amendments as the record of American political yearning (Priority: 4/5): Lepore’s failed-amendments project showed rejected amendments form a 'census of the dead' that reveals what Americans have long wanted to change, from birthright citizenship to the Electoral College. The Supreme Court, originalism, and informal constitutional change (Priority: 5/5): The conversation explores how courts have effectively become the main vehicle for constitutional change, especially through the 14th Amendment, while originalism narrows acceptable historical evidence. Trump, executive power, and constitutional crisis (Priority: 5/5): Swisher and Lepore discuss Trump’s efforts to override constitutional limits, Congress’s weakness, and how executive power now often determines what is treated as constitutional. AI, oligarchy, and the need for a new constitutional imagination (Priority: 4/5): Lepore suggests AI and concentrated corporate power may create pressure for a new constitutional settlement, because current institutions are not equipped to govern such power.
Key Arguments: Amending the Constitution is not a fringe act but a foundational part of American constitutionalism; without it, the Constitution loses legitimacy. Article V was designed as 'Goldilocks math' for a very different political era, but party polarization and money in politics now make it far too hard to use. Many of the Constitution’s enduring structural problems trace back to compromises over slavery and small-state power. The 14th Amendment became the main vehicle for expanding rights because disenfranchised groups could not win via legislation or amendment. Originalism is presented as historically incomplete: it excludes petitions, black conventions, and broader democratic participation from the admissible record. Conservatives turned to originalism after failing to overturn civil-rights and reproductive-rights precedents through Article V or ordinary politics. Trumpism exploits a public sense of constitutional frustration and a political system where Congress has surrendered power to the executive. The modern crisis is not only judicial; it is civic, because Americans no longer seem able to convene and deliberate about fundamental law. AI and concentrated platform power may force a new governance framework because a few corporations increasingly shape public discourse and decision-making.
Data Points: Constitution meaningful amendment gap: More than 50 years - Lepore says the Constitution has not been meaningfully updated in over half a century. Last meaningful U.S. constitutional amendment: 1971 - The 26th Amendment lowered the voting age from 21 to 18. 27th Amendment ratification year: 1992 - Congressional pay amendment introduced in 1789 but ratified much later. Failed amendment project size: Full text of every failed U.S. constitutional amendment - Lepore built an amendments database as part of her research. Progressive Era amendment burst: 4 amendments between 1913 and 1920 - The era produced major constitutional changes after prolonged failure. ERA support level: About 80% of Americans - Lepore says public support for the Equal Rights Amendment was very high in the 1970s. Balanced Budget Amendment support: About 80% popular approval - She cites it as another highly popular but unrealized amendment idea. Federalism compromise delay: 20 years - Article V barred ending the slave trade by amendment until 1808, twenty years after drafting. Ratification threshold: Three-quarters of the states - Article V requires supermajority state ratification. Congressional proposal threshold: Two-thirds of both houses - Article V requires a supermajority in Congress before ratification. Supreme Court cases argued by Neil Katyal: More than 50 - Mentioned in the introduction to the episode. Colored conventions: About 200 conventions - Lepore cites black Americans’ constitutional conventions in the 19th century.
Pivotal Quotes: "It kind of worked as its own miniature historical record." — Jill Lapore: Describing failed amendment proposals as a historical archive of American political desires. "By far the most radical innovation in the U.S. Constitution." — Jill Lapore: Her description of Article V and the amendment mechanism. "These fuckers don't get to decide." — Jill Lapore: Discussing constitutionalism, AI, and why people object to concentrated decision-making power.
Implications: The episode argues that U.S. constitutional failure is now a governance problem: if amendment, deliberation, and institutional checks keep breaking down, courts and executives will define the system. That makes future reform depend on rebuilding civic trust and imagining new constitutional rules.